Exhibit 4.2
[LETTERHEAD OF SSP-SPECIAL SITUATIONS PARTNERS INC.]
October 19, 2000
ICN Pharmaceuticals, Inc.
0000 Xxxxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Dear Sirs:
The purpose of this letter is to set forth the following agreements
and understandings between ICN Pharmaceuticals, Inc. (the "Company") and
SSP-Special Situations Partners Inc. ("SSP").
Section 1. Press Release. Concurrent with the execution of this Letter
Agreement, the Company has issued a press release in the form attached
hereto as Annex A (the "Press Release"). The Company shall not (and shall
cause its officers, directors, agents and advisors not to) make any public
statement in connection with this Letter Agreement or the matters addressed
in the Press Release that is inconsistent with the Press Release.
Section 2. Annual Meetings of Shareholders. As a means for SSP and the
stockholders of the Company to enforce the commitments of the Company set
forth in the Press Release, the Company agrees that:
(i) The board of directors of the Company (the "Board") and the
Company shall take all steps necessary or desirable to hold the 2001 annual
meeting of stockholders of the Company by not later than May 30, 2001 (the
"2001 Meeting") and the 2002 annual meeting of stockholders of the Company
not later than May 29, 2002 (the "2002 Meeting"), and shall not seek to
postpone or adjourn, or permit the postponement or adjournment, of either
the 2001 Meeting or the 2002 Meeting.
(ii) The Board and the Company shall by not later than the 2002
Meeting, in accordance with applicable law, cause the size of the Board to
be reduced to, and fixed at nine directors, divided into three classes of
three directors. Such reduction shall be accomplished by reducing to three
the number of directors to be elected at each annual meeting of
stockholders of the Company (together with a concomitant reduction in the
size of the entire Board) beginning, seriatim, with the 2000 annual meeting
of stockholders of the Company (the "2000 Meeting").
(iii) The Board and the Company shall take all steps necessary or
desirable to procure that at each of the 2000 Meeting, the 2001 Meeting and
the 2002 Meeting, the stockholders are entitled to elect exactly three
directors and that the number of directors to be elected at the 2002
Meeting, when taken together with the number of directors elected at the
2001 Meeting, shall in no event constitute less than two-thirds of the
entire Board at the date of the 2002 Meeting.
(iv) The Company shall not (and shall cause its officers, directors,
agents and advisors not to) take any action (including increasing the size
of the Board or proposing any amendments to its Restated Certificate of
Incorporation or By-laws) that would impede or prevent (A) the Company from
complying fully with the terms of this Letter Agreement or (B) any person
who has complied with the Company's Restated Certificate of Incorporation
and any other applicable law from making any shareholder proposals or
nominations at, or from soliciting proxies in respect of, the 2001 Meeting
or the 2002 Meeting.
(v) The Board shall, as soon as possible but by not later than October
24, 2000, duly adopt, in accordance with the charter documents of the
Company and in accordance with the Delaware General Corporation law, an
amendment to the Company's By-laws in the form attached hereto as Annex B.
Section 3. SSP Covenant. SSP hereby covenants and agrees that it will
not, and will cause each of its affiliates not to, nominate or propose to
nominate any person for election at, or bring or propose to bring any
matter before, the 2000 annual meeting of stockholders of the Company.
Section 4. Representations and Warranties. (a) The Company represents
and warrants to SSP that (i) its execution, delivery and performance of
this Letter Agreement has been approved by the Board and does not violate
its Restated Certificate of Incorporation or Bylaws or any agreement to
which it is a party, and (ii) this Letter Agreement constitutes a valid and
binding obligation of the Company, enforceable against the Company in
accordance with its terms.
(b) SSP represents and warrants to the Company that (i) its execution,
delivery and performance of this Letter Agreement has been approved by all
necessary corporate approvals and does not violate its constituent
documents or any agreement to which it is a party, and (ii) this Letter
Agreement constitutes a valid and binding obligation of SSP, enforceable
against SSP in accordance with its terms.
Section 5. Miscellaneous. This Letter Agreement represents the entire
understanding of the parties hereto with reference to the subject matter
hereof and supersedes any and all other oral or written agreements and
understandings among the parties heretofore made. This Letter Agreement
shall be governed by, and construed in accordance with, the laws of the
State of Delaware. Each of the parties hereto shall use such party's best
efforts to take such actions as may be necessary or reasonably requested by
the other party hereto to carry out and consummate the transactions
contemplated by this Letter Agreement. No party to this Letter Agreement
directly or indirectly, shall, or shall permit anyone acting on its behalf
to challenge the validity or enforceability of any provision of this Letter
Agreement or the matters contemplated hereby. The parties hereto agree that
irreparable damage may occur in the event that any provision of this Letter
Agreement is not performed in accordance with the terms hereof and that the
non-breaching party will be entitled (in addition to any other remedy at
law or equity) to an injunction or injunctions to prevent breaches of the
provisions of this Letter Agreement and to enforce the terms and provisions
of this Letter Agreement by a decree of specific performance in any action
instituted in any court of the United States or any state thereof having
jurisdiction without the necessity of proving the inadequacy of a remedy of
money damages. If any term or other provision of this Letter Agreement is
invalid, illegal or incapable of being enforced by any rule of law or
public policy, all other conditions and provisions of this Letter Agreement
shall nevertheless remain in full force and effect.
If the terms of this Letter Agreement are in accordance with your
understandings and agreements with us, please sign and return the enclosed
duplicate of this letter, whereupon this Letter Agreement shall constitute
a binding agreement between us.
Very truly yours,
SSP-SPECTAL SITUATIONS PARTNERS INC.
By /s/ Xxxx Xxxxxx
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Accepted and agreed to as of
the date first above written:
ICN PHARMACEUTICALS, INC.
By /s/Xxxxx X. Xxxx
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